The Washington PostDemocracy Dies in Darkness

The conflict over takings and property rights in China and its parallels with that in the United States

Since the Supreme Court’s 2005 decision in Kelo v. City of New London, which ruled that the government can take property from one private owner and give it to another for “economic development,” the United States has had an ongoing debate over the uses and limits of eminent domain. In the wake of Kelo, there was a massive outcry against the forcible displacement of homes and small businesses by the government. But few Americans know that a similar struggle has been going on in China.
When I first started writing about eminent domain and property rights in the early 2000s, I thought that my work would only be of interest to experts in American property law and constitutional law. But in the years since the Kelo case, I started getting contacted by scholars and media from China. This year, I was even invited to lecture on property rights issues at a Chinese university, mostly because of my work on Kelo and takings.

Chinese scholars are interested in the US debate over Kelo and economic development takings because their own government engages in similar practices on a much vaster scale. Since the last 1970s, as many as 40 million Chinese have been forcibly displaced in order to make way for various economic development projects. Over 1 million were forced out just to make way for construction related to the 2008 Beijing Olympics.

Despite the obvious differences between the two countries, there are many parallels between the US and Chinese debates over eminent domain. As in the Kelo case, much of the land taken is condemned for transfer to private developers. In both countries, the victims of such takings are usually poor and politically weak – in the case of China, often peasants. And, just as the Kelo decision triggered a massive public reaction in the US, land seizures in China have led to numerous public protests, even in an authoritarian society. Indeed, this issue has triggered more popular protest against the Chinese government than any other in recent years.

Obviously, there are noteworthy differences between the two situations, in addition to the vastly greater scale of the Chinese takings. Although American victims of economic development and “blight” condemnations are often poorly compensated, they generally get much more compensation than their Chinese counterparts. Another important distinction is that the Chinese government only officially recognized private property in land in 2007, and most rural Chinese do not have full-fledged legal property ownership, which officially remains in the hands of the government. This makes it easier for the state to displace them. Finally, in China’s authoritarian society, it is very difficult for victims of takings to get redress in either the courts or the political process. In the wake of Kelo, some American states enacted effective reforms, and some state courts constrained economic development takings under their state constitutions. US post-Kelo reform efforts are far from fully adequate; but they have made greater progress than the much more limited reforms so far enacted in China in response to the far greater land seizures in China. In fairness, however, today’s Chinese policies are still a major improvement over those of the Mao era, when there were no private property rights at all, and the government simply killed, imprisoned, or starved to death those who got in the way of official development projects.

Today, by contrast, there is at least an active debate over these issues in China, among both experts and the general public. The fact that I was invited to lecture on the subject despite having been highly critical of Chinese takings is itself a very small indication of openness to conflicting views on the subject. The vast majority of Chinese economists and legal scholars who I discussed the subject with told me that they support imposing much tighter constraints on eminent domain than currently exist in that country, though there was considerable disagreement over exactly how far the constraints should go. On this issue, at least, legal academics in officially communist China seem more supportive of private property rights than most of their counterparts in the US. Most American legal academics support the Court’s decision in Kelo, and many also oppose all but the most modest state-level restrictions on takings (though it should be noted that American economists specializing in property issues are, on average, more skeptical of eminent domain than law professors are).

Chinese academics and policymakers have paid considerable attention to the American debate over Kelo. Both sides in the Chinese debate have used it to buttress their respective positions. Defenders of the Chinese status quo argue that, if economic development takings are permitted even in the nation supposedly most devoted to private property rights, they are surely a good idea in China as well. For their part, property rights advocates cite the negative public reaction to Kelo and the many post-Kelo reform efforts. What started out as a little-known case in the small city of New London, Connecticut has influenced political and legal debates on the other side of the world.

While academic and public opinion in China generally supports tighter constraints on land seizures, many political elites believe otherwise. Local governments get much of their revenue from selling off expropriated land. Influential developers often use the process to acquire new property at below-market prices. The future of eminent domain and property rights in China remains uncertain. But the fact that there is an active debate on the subject represents at least some measure of progress, especially in a still-authoritarian society. It is also striking that the US debate over Kelo has resonated so strongly in China, despite the major differences between the two countries.